Posted on 12-Nov-08 by The Timekeeper

So what is 2009 going to bring? With a new administration on the way in Washington, a lot of people are wondering. And, specifically, around here we’ve been pondering what this could mean for wage and hour / time and attendance issues.

From what I can see, for employers who already try to do right by their employees, it’s going to be pretty much business as usual. Of course, you want to make sure to check things out periodically with your lawyer to make sure your well-meaning policies don’t inadvertently run afoul of the law. But in general, if you were operating on the up-and-up before, you don’t have much to worry about now.

Where it starts to get interesting is for employers who have been cutting corners a bit, being a tad more, uhmmm… “aggressive” in their interpretation of wage and hour regulations. And it should be getting downright scary for those types who have been cheating employees out of earned overtime, paying less than minimum wage and deliberately misclassifying employees to avoid paying OT and withholdings.

“More Aggressive” DOL

According to the Washington Labor & Employment Wire, we can probably expect a more aggressive Wage and Hour Division of the DOL under an Obama administration.

In a July 27, 2008 letter to the Department of Labor, President-elect Obama set forth his vision for a WHD that listens to worker advocacy organizations and more actively initiates its own investigations. President-elect Obama also indicated his desire to expand the scope of WHD’s activities, criticizing the Bush administration’s emphasis on only four industries (agriculture, accommodation and food services, manufacturing, and health care and social services). He also indicated his desire to increase funding for the WHD in order to actualize the enhanced role he envisioned for it. With the support of a Democratic Congress, the Obama administration could make this vision a reality.

Already Happening?

If anybody needs further convincing, how about this announcement I found on the Talking Union blog?

Apparently, today (November 12) at noon, at the US DOL - Frances Perkins Building at 200 Constitution Avenue NW in Washington DC, a press conference will be held by Kim Bobo, Executive Director of Interfaith Worker Justice to discuss her new book, Wage Theft in America: Why Millions of Americans Are Not Getting Paid — And What We Can Do About It.

In what has been described as “the crime wave no one talks about,” billions of dollars worth of wages are stolen from millions of workers in the United States every year. The scope of these abuses is as staggering as it is wrong — paying employees far less than the legal minimum wage, purposefully misclassifying employees as independent contractors, illegally denying workers overtime pay — and only now are people beginning to take notice. Kim Bobo’s major new book Wage Theft in America offers a sweeping analysis of the crisis and provides concrete solutions, with special attention to what the new presidential administration should do about the problem.

Just in case you didn’t notice the first time… this press conference — while not an “official” government-sponsored event — was organized by members of the American Federation of Government Employees union Local 12 who work at the Department of Labor, and is being held in the Department of Labor building.

Brace Yourselves for More Litigation

According to the Collabrus Expert Compliance Blog, “a 2008 survey sponsored by international law firm Fulbright & Jaworski L.L.P, indicates that U.S. companies now anticipate an rise in new actions and government probes,” and wage and hour actions head the list.

While many types of cases have seen a decrease over the past couple of years, companies have been seeing an increase in wage and hour lawsuits. Wage-and-hour litigation was the largest single issue cited by employers as a concern for the coming year.

Beyond lawsuits, companies also indicated they were seeing an increase in government actions as well. The folks behind the survey concluded both government actions and lawsuits will likely continue to increase in the coming year. (This is entirely in line with other predictions I’ve read elsewhere.)

Of course, it’s possible even if you’re doing everything “by the book” you might get caught up in a lawsuit anyway. You can either ignore the possibility and get caught by surprise, or you can follow the wise advice of the Boy Scouts and “Be Prepared!”

So, what can you do? Well, when’s the last time you conducted a wage and hour audit? When’s the last time you sat down with your lawyer to review your employee handbook and employment policies and practices? If it’s been more than a year or two, it’s time to do it again. Sure, you need to track time and attendance accurately and make sure you pay everyone fairly for all the hours they work, but wage and hour compliance is not just about overtime. If you’ve got all your I’s dotted and T’s crossed, you’ve got a much better chance of surviving any DOL investigation or wage and hour lawsuit than if you’re just “winging it.” Take this seriously. The survival of your business may depend on it.

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